Using Point Headings to Make a Point

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Professor Gregory Berry
Using Point Headings to Make a Point
Trial Memoranda and Motion Briefs
MEMORANDUM FOR:
SUBJECT:

All Law Students
Notes on Trial Memoranda and Motion Briefs
1. The purpose of this tutorial is to provide guidance regarding the form and content of persuasive
trial memorandum and motion briefs.
2. In general, the single biggest weakness of the typical motion brief is a lack of rigor in applying the
legal analysis paradigm (the "C-R-P-A-C"). Following this framework -- especially the rule
statement and proof components -- offers you the greatest potential for significantly improving the
effectiveness of your brief.
3. Two of the most useful devices you can employ to ensure that your analysis adheres to the
CRPAC paradigm are good point headings and thesis statements. The purpose of a point heading is
exactly what the name implies: to STATE YOUR POINT! A vague allusion to the issue or a general
description of the matter to be discussed may be adequate in an office memorandum or client letter
but is very ineffective in a trial or appellate brief. Vague point headings do not convey much useful
information to the decisionmaker and have the unhappy effect of squandering a valuable
opportunity to highlight, restate, and summarize your arguments.
4. A good point heading "speaks" for itself; a vague heading does not. For example, compare the
following pairs of headings and subheadings:
IMPRECISE
HEADING:
"THE PAROL EVIDENCE RULE BARS THE LEGLEWRIGHT
MEMORANDUM"
GOOD
HEADING:

"THE STATEMENTS IN THE LEGLEWRIGHT MEMORANDUM ARE
IRRELEVANT AS A MATTER OF SUBSTANTIVE CONTRACT LAW
BECAUSE THEY ARE OFFERED TO VARY, CONTRADICT, OR MODIFY
THE CLEAR AND UNAMBIGUOUS TERMS OF THE PARTIES' FULLY
INTEGRATED WRITTEN AGREEMENT IN VIOLATION OF THE PAROL
EVIDENCE RULE"
VAGUE
HEADING:
"Scope of Duties"
GOOD
SUBHEADING:
"The Statements in the Leglewright Memorandum Are Inadmissible as
Admissions by a Party Opponent's Agent or Employee Because They Do Not
Concern Matters Within the Scope of Leglewright's Duties as Required by
Maryland Rule of Evidence 5-803(a)(4).
5. Good point headings contain all the critical features of the CRPAC paradigm: the CONCLUSION
Using Point Headings to Make a Point
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is clear, the RULE upon which it is based is referenced, and the determinative FACTS are
identified. The reader knows precisely where you're coming from and where you're going in the
discussion to follow. What's more, if she falls asleep or is otherwise distracted before she gets
through the full elaboration of your argument, at least she is already apprised of the substance of
your positions.
6. Thesis statements are the opening sentence in a paragraph and relate to the particular aspect of
the point heading that is to be addressed in the remainder of the paragraph. It is the legal or factual
conclusion that the rest of the paragraph must justify. Note how the paragraphs are structured
consistent with the CRPAC paradigm in the example below:
As discussed in this section, the statements in the Leglewright Memorandum do not
concern matters within the scope of Leglewright's duties and thus are inadmissible against
NewDay as an admission by a party. [THESIS STATEMENT and CONCLUSION] Rule
5-803(a)(4) expressly requires that a statement made by an agent or employee during the
period of her agency or employment must also "concern matters with the scope of the
agency or employment relationship." MD R. Evid. 5-803(a)(4); see Gregory v. Berry, 216
Md. 56 (1956). [RULE STATED] In Gregory, the court held that a statement of an
employee regarding matters not "centrally related" to his duties was not binding on the
employer because it was not within the scope of the employee's duties. Id. at 62. In that
case, an employee's statement that . . . were offered as a party admission against the
employer to prove . . . The court excluded the statement because . . . According to the
court, the employee's statements could not be deemed to be within the scope of his duties
because ". . .(relevant quote) " Id. at 62-63. [RULE PROOF]
The holding in Gregory is dispositive here on the issue of whether the statements in the
Leglewright Memorandum concern matters within the scope of Leglewright's duties.
[THESIS STATEMENT] Leglewright's statements are not "centrally related" to her
duties as Largo Crossing Site Manager because . . . The record indicates that
Leglewright's duties were limited to . . . In addition, on several occasions Leglewright had
been . . . The statements reflected in the Leglewright Memorandum relate not to
construction activities, Leglewright's central duties, but to tenant relations and lease
negotiations. . . . . [RULE APPLICATION] Since her statements are not related to her
central duties as Site Manager, Leglewright's statements do not "concern matters with
the scope of the agency or employment relationship" as required by Rule 5-803(a)(4)
and, thus, are inadmissible against NewDay. Gregory, 216 Md. at 63. [CONCLUSION
RESTATED].
7. Following the CRPAC paradigm will enhance the quality and effectiveness of your memorandum
or brief but only if you have identified the issues properly, and researched them thoroughly. If the
issues are misidentified or not researched adequately, following the paradigm will not transform a
bad brief into a good one. Remember everything is connected: issue identification, data collection,
solution generation, solution evaluation, decision, action. Do not forget that one of the most
important skills in the lawyer's repertoire is her ability to see the "connection of things."
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